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Full text of "Episcopal elections: ancient and modern. A study in ecclesiastical polity"



EPISCOPAL ELECTIONS 



Ancient and Mcxdevn. 



A STUDY IN ECCLESIASTICAL POLITY. 



S. E. DAWSON, 



DELEGATE FROM CHRIST CHURCH CATHEDRAL, MONTREAL, TO THE 

DIOCESAN SYNOD AND A DIOCESAN DELEGATE TO 

THE PROVINCIAL SYNOD OF CANADA. 



MONTREAL 



DAWSON BROTHERS, PUBLISHERS, 

1877. 



The FIMTlj 7 



fyfeen's (Z„ iv 



"** *' Kngston 



(0. 
EPISCOPAL ELECTIONS: 



Jtocient and Modern* 



A STUDY IN ECCLESIASTICAL POLITY. 



S. E. DAWSON, 



DELEGATE FROM CHRIST CHURCH CATHEDRAL, MONTREAL, TO THE 

DIOCESAN SYNOD AND A DIOCESAN DELEGATE TO 

THE PROVINCIAL SYNOD OF CANADA. 



MONTREAL : 

DAWSON BROTHERS, PUBLISHERS, 

1877. 



to I \ 

•1^13 



PRINTED AT THE "GAZETTE" PRINTING HOUSE 



PREFACE. 

This study upon a subject which is now occupying the attention 
of the assemblies of the Church of England in Canada, is put 
forth, not as offering any new views, but rather for the purpose 
of collecting, in a> convenient form, the opinions of learned 
writers upon a much disputed point of Canon law. Care has been 
taken to cite in all cases the authorities used, and writers of the 
churches of England and Rome have exclusively been referred 
to, because, upon such a point, they would naturally have more 
weight with Anglicans than non-episcopalian writers, no matter 
how learned the latter might be. Some arguments have been 
employed which, being of a more general nature, may appeal to 
the judgment by their own intrinsic force ; but none of them are 
original. They have all been suggested by reading, conversation, 
or debate. The question is interesting from whatever point it is 
approached, and public debate could never, in the time usually 
allotted, go to the bottom of it. The authorities are so volu- 
minous, the period of history covered is so wide, and the 
circumstances, under which the principles invoked have been 
applied, are so various, that weeks instead of hours would not 
suffice properly to discuss them in a public assembly. In all 
questions concerning the church, a victory in a party sense is a 
general defeat. When the true governing principle is discovered 
and adopted, then only the work of legislation is solidly done, 
and the result can properly be called a victory. 



CONTENTS. 

PAGE 

I. — Preliminary Considerations 5 

II. — The Argument from Antiquity 9 

III.— The Primitive Church 14 

IV. — The Judicium of the Bishops 40 

V. — The Law of the Church of England in England 43 

VI. — The Law of the Church of England in Canada 46 



EPISCOPAL ELECTIONS. 



GENERAL CONSIDERATIONS. 

"When any civil or ecclesiastical institution has been 
tried by experience and found to work well — when it has- 
been repeatedly tested and has always proved equal to the 
strain — when the results of its working are evident before 
our eyes, and when these results, far from exciting dissatis- 
faction, are continually the subject of congratulation — any 
proposition to innovate upon such an institution should 
challenge our earnest attention. If superadded to this y 
experience has taught us that every deviation has resulted 
in discord and difficulty, the argument against innovation 
becomes irresistible, and conservatism has its full justifica- 
tion, for then Lord Bacon's maxim is fully applicable ; 
"it is good not to try experiments in states, except the 
" necessity be urgent, or the utility evident." 

These, and many similar considerations apply with full 
force to the change proposed in the election of Bishops in 
the Anglican Church in Canada. As to the precise extent 
of the wishes of the Bishops, they themselves have not 
informed us. The desires of the Bishops are probably 
far outrun by the advocates of change, for it is not in the 
Roman Church only that a man may be " more catholic 
than the Pope." 

It is not pretended that the system of free diocesan 
election has placed upon the episcopal bench a class of 
men inferior to their predecessors, or that the surviving 
nominated Bishops fire superior to those chosen by the 



dioceses. The diocesan synods have done well in years 
past, and the presumption must be that, with increased 
experience, they will do at least as well in the future. 
The only elections which were accompanied to any extent 
by conflict were joint elections in which the House of 
Bishops took part. If the object be to repeat these scenes 
and to bring the House of Bishops into incessant colli- 
sion with the synods, the proposed change would most 
unquestionably effect the purpose. It seems unreasonable 
to change the rule which has always worked well for 
that which has always worked ill ; or to curtail the rights 
of the dioceses until they are shown to have made even 
once a bad election. 

It was argued in the Provincial Synod that the divine 
afflatus rested upon the Bishops. Let it be granted. The 
proposition is not complete until the clause is added, 
" and upon the Bishops alone." Another clergyman, 
referring to the election in the Diocese of Quebec, stated 
that " everything had turned, out well in the providence 
" of G-od ; but what might have occurred — the person 
" chosen might have been a person wholly unfit for the 
" office." It seems harsh to limit the providence of G-od 
to that one synod, or to suppose that the clergy and 
chosen laity of a diocese, entering upon a solemn duty 
in the method prescribed by the Church, should be, 
at any time, bereft of the Divine guidance and assist- 
ance. The proposition goes far towards a claim for in- 
fallibility on behalf of the bishops ; while the whole body 
of the Canon law attaches the chief importance to the 
testimony of the clergy and people, for they, says St. 
Cyprian, "have most fully known the life and conversation 
of each individual." This would naturally result from a 
residence in the same diocese. 

The new canon is misnamed by some " a conservative 
measure," and its object they say is to rescue the elec- 
tions from the preponderating weight of lay influence. A 



moment's consideration will show that the present method 
is conservative to a degree. The voting in elections is not 
conducted in the ordinary way. Every clergyman in the 
diocese has one vote, and all the lay representatives for 
his parish have bnt one vote among them. In the election 
for Montreal, four, and sometimes six, lay votes counted 
as one, whereas each assistant deacon, in a church with a 
large clerical staff, had an entire vote. Moreover the lay 
votes from a parish were often divided equally and so did 
not count at all. The fact is that the clergy have a large 
preponderating influence in elections. This is a most 
effective check upon the laity, but if superadded to this, 
there must be another clerical election in the House of 
Bishops, the laity may as well give up, first as last, any 
participation in the matter, for it is not consistent with the 
self-respect of intelligent men to suffer themselves to be 
amused with the mere shadow of power and responsi- 
bility. 

And here it is well to note, that what is really claimed, 
under cover of the proposed canon, is a new election in 
the House of Bishops, over the Diocesan election. An 
election to be held with closed doors, and where the 
reasons of rejection will never transpire. Such an elec- 
tion would be unjust to the candidates, for a clergyman 
of unsullied reputation might be rejected without reason 
shown, and that in a house where the members are few in 
number, and each vote therefore of great weight. If the 
Bishops would state beforehand what qualifications they 
require, the electors and candidates would have some 
guide. These requisites are now unknown, and such a 
canon as this must produce a violent contest whenever it 
is acted upon, and the victory will be dearly bought, even 
if it rests with the House of Bishops, for it will entail 
the future indifference of a large number of active and 
independent-minded laymen. 

The system of co-optation, which, in course of years, 



8 

would probably result from the projected innovation, has 
the great disadvantage of gradually alienating the body 
adopting it from the other portions of the civil or ecclesi- 
astical state. By a free system of election alone, can 
permanent harmony be preserved between the three 
orders, and the feelings and wishes of the clergy and 
laity find a voice in the Upper House. 

It is not denied that a canon of consecration is neces- 
sary. On the contrary, it would be highly proper that 
rules should be laid down by which the consecrating 
Bishops should examine into an election, and see that 
it has been conducted with the canonical forms, and that 
the person elected has certain specified qualifications. 
Every organised body has this right; but to reject a 
Bishop-elect simply because he could not command a 
majority in the Upper House, would be no more just 
and reasonable than it would be in the case of the Senate 
or the House of Lords. A canon of consecration, based 
on English precedent (vide p. 47), might easily be made 
to command the consent of all. 

This proposed change is one of vital importance. It 
strikes at the foundation of the system which was the 
pride of the master-builders. The eloquent testimony of 
Bishop Strachan (vide p. 50) to the primitive character of 
our diocesan elections should be read carefully by every 
delegate, for there he will find the simple truth stated in 
simple language. Even a layman, with a fractional vote 
at elections, can understand it, and may well ask how 
much less capable, honest, and intelligent, are the laity of 
1877 than those of 1858? It is not immediately, or sud- 
denly, that any error in principle shows its ill effect,, 
especially in ecclesiastical matters ; but it is in the long* 
course of years, when other occupants have succeeded 
to the honours of the episcopal bench, that the flaw in 
the structure will appear, that principles of encroachment 
will insidiously be worked out in all their logical 



sequences, and the laity will find that, as it was in the 
tenth so will it be in the twentieth century, they will 
little by little have been ousted of their ancient rights 
and privileges. 



II. 

THE ARGUMENT FROM ANTIQUITY. 

Ill the very learned and able discussion which took 
place, concerning the proposed change, at the session of 
the Provincial Synod in 1874, great stress was laid upon 
the custom of antiquity, and especially upon the fourth 
canon of the Nicene Council. It was maintained by 
many that these authorities supported a right of absolute 
veto residing in the House of Bishops. 

To this it may well be objected in limine that, according 
to the 21st Article of Religion, general councils may err, 
and have erred, and moreover that, by the 34th Article, 
we are taught that it is not necessary that traditions and 
ceremonies should be in all places one and utterly alike ; 
but that they may at all times be changed according to 
the diversities of countries, times, and men's manners, so 
that nothing be ordained against G-od's Holy Word. It 
is therefore unreasonable to suppose that regulations of 
discipline made fifteen hundred years ago, in a semi-pagan 
community, under an absolute military government, for 
a state of society which since long ages has utterly disap- 
peared, should be applicable to a society such as ours, 
where the whole canon of Scripture is in the hands of 
the laity as well as of the clergy, and upon a continent 
whose existence was then not even suspected. If the 
.matter were of divine faith, it would fall under another 



10 

rule ; but it is one of organisation and outward discipline, 
and the distinction should be carefully borne in mind. 

The most cursory perusal of the Nicene canons will 
show their inapplicability, and history bears witness to 
the fact that many of them have been for ages totally 
disregarded by the church. By the 20th canon^ we are 
absolutely forbidden to kneel when we offer prayers on 
the Lord's day, and the standing posture is enjoined. The 
Presbyterian Church alone obeys this command. Then, 
by the 15th canon, f bishops, priests, and deacons are for- 
bidden to move from city to city, but must remain in the 
place for which they are ordained, Upon this, Dean 
Stanley remarks : " By the close of the century it was 
" set aside as if it had never existed, and there is proba- 
" bly no church in Europe in which the convenience or 
" the ambition of men has not proved too strong for its 
" adoption. If the translation of bishops has now become 
" the exception, yet the translation, the promotion, of 
" presbyters and deacons from place to place has been so 
" common as to escape notice." This canon was re-enac- 
ted at the Greneral Council of Chalcedony and the bishop 
who receives a clergyman from another diocese, as well 
as the priest who removes, are excommunicated until the 
wandering clergyman returns to his own bishop. 

The transitory nature of many of these canons is seen 
in the 7th. It is as follows : " Since custom and ancient 
" tradition have prevailed, that the Bishop of iElia should 
" be honoured, let him have the next place of honour, 
" saving to the Metropolitan his proper dignity." Now 
iElia was a new name for the rebuilt city of Jerusalem, § 



* See Stanley — Eastern Church, p. 263. 
f Eastern Church, p. 261. 

X Council of Chalcedon, A.D. 451, Canon 20. See also, to the same 
effect, 21st Canon of the Council of Antiocb, A.D. 341. Bp. Hefele, p. 72. 
§ Stanley— Eastern Church, p. 261. 

Bp. Hefele — History of Christian Councils, p. 408. 



11 

the mother city of Christianity, and yet it was made to 
yield precedence to Csesarea ; and, after all, scarcely a 
century had passed before Jerusalem was again a patri- 
archal city, and Csesarea a simple bishop's see. So much 
for ancient tradition. 

It would be excessively tedious to go overall the canons 
of this council. Space will permit only of allusion to the 
questions of the "lapsi," the "catharoi," the "digamists," 
and others, relating to the manners and morals of the 
clergy. It may, however, be observed that by the 5th 
canon, provincial synods should be held twice a year. Our 
provincial synods are 1 held only once in three years. 

It is important to notice that the present attempt to 
introduce new customs into the Canadian Church stops 
short of the canons of Nicsea. That council records the 
first steps which led to the privileges of the great patri- 
archates, and to the primacy of the see of Home. The 
6th canon reads : " Let ancient customs prevail ; those in 
" Egypt, Lybia, and Pentapolis ; that the Bishop of Alex- 
" andria have power over all these, since this is customary 
" for the Bishop of Rome also (since the Bishop of Rome 
" also has a similar custom). But this is clearly manifest, 
" that if any be made a bishop without the consent of the 
" Metropolitan, the great Synod has determined such an 
" one ought not to be bishop." Clearly then, if the pro- 
posed change is to give our church a Nicene status, the 
Metropolitan should have a veto. Why not take up the 
whole ground at once, and erect a protestant popedom ? 
Then again, Who should be, by Nicene rule, the patriarch 
of our church ? This is a theoretical point which may 
be left to more learned canonists, but it is clear that, 
whereas the Church in Britain was founded by Eastern 
missionaries, and therefore (although it afterwards 
yielded) may escape the primacy of Rome, the Christian 
Church in Canada w T as founded by Roman missionaries, 
and by srtict canon law, the Archbishop of Canterbury 



12 

had no right to ordain bishops in the patriarchate 
of another prelate. The arguments of Barrow, in his 
treatise on the Pope's supremacy, though conclusive as to 
Britain, fail as regards Canada, for the above reason. Such 
points as these were pressed upon the Oxford tractarians 
by Cardinal Wiseman in 1840, and one of them, the Kev. 
"Win. Palmer, fairly driven into a corner by the keen logic 
of the Cardinal, is obliged to take this position : " We^ 
<{ fully admit that the strictness of the canons may be dis- 
"" pensed with, either in a case of necessity, or for the 
<( convenience of the church, and the advantage of reli- 
" gion ; but there is one exception — the church can never 
u dispense with those canons which are based on the law 
" of Christ," If this be the case, why are our " ancient 
customs " troubled by a resuscitation of customs dead 
and buried for a thousand years ? 

The particular canon which is relied upon by the inno- 
vating party is the 4th : " The bishop ought indeed 
" chiefly to be constituted by all (the bishops) of the 
" province ; or, if that is not possible on account of 
" pressing necessity, or on account of the length of 
"journeys, three (bishops) at least shall meet, and pro- 
" ceed to the imposition of hands, with the consent of 
" those absent in writing. The confirmation of what is 
" done belongs by right to the Metropolitan." To this canon 
j.t should be noted there is no excommunication attached, 
as in the case of the canon forbidding the removal of cler- 
gymen. The point concerning the consent given will be 
noticed in another place. Here we would only quote the 
comment of the learned Dean of Westminster :f " This 

* Rev. Wm. Palmer — Apostolic Succession and Jurisdiction of the Epis- 
copacy in the British Churches Vindicated, p. 54. 

f Dean Stanley — Eastern Church, p. 259. 

Rev. Wm. Palmer — Apostolical Succession, &c, of the British Epis- 
copacy Vindicated, p. 248, to the same effect. 

The G-reek word is translated " ordinari " by Dionysius Exiguus, and 
in the Decretum of Gratian Dist. 64, c. 1. 



13 

" canon is still observed throughout the greater part of 
" Christendom. It enjoined that at the consecration (or- 
" dination, as it was then termed) of a bishop, no less 
" than three bishops should be concerned, as representing 
" the absent bishops of the province, who might be 
" detained by pressing business or the length of the 
" journey." " On the observance of this canon in the 
11 consecration of Archbishop Parker of Canterbury," he 
adds, " depends the degree of validity and regularity 
" which is attached to the orders of the Church of Eng- 
' : land." To this may be added the remark that the same 
rules, which were observed in the case of Archbishop 
Parker, are to this day observed in Canada, and upon the 
canonicity of that one ordination the orders of the whole 
Anglican Church depend. 

All these points, however, are questions of " discipline," 
not matters of " Divine faith," and therefore it does not 
follow that, because Nicsea gave us a creed, we should 
adopt all its canons. As for the creed in our prayer 
books, which passes under the name " Nicene," its proper 
designation is Constantinopolitan ; for the Council 
of Constantinople, fifty-six years later, made many 
changes in the body of the Nicene creed, and added to 
it all the clauses after the words, " I believe in the 
"Holy G-host." The clause "and from the Son,"^ is 
the unauthorised interpolation of Eecared, a semi-bar- 
barous Gothic king of Spain, who, in the zeal of recent 
conversion from Arianism, sought to improve upon the 
deposit of faith. The whole Western Church, Roman 
and Anglican, has adopted this interpolation, and it is 
this which prevents inter-communion between the Angli- 
can and the orthodox Eastern Church. If, then, the 



* Cabassuetio Synopsis Concilliorum, vol. 3, p. 95. 

Rev. E. S. Ffoulkes— Church's Creed or the Crown's Creed. 

Do. Is the Western Church under Anathema ? 



14 

church in Canada is to be brought to the Nicene standard, 
"why not " let ancient customs prevail," and commence 
with the creed ? 



III. 

THE PRIMITIVE CHURCH. 

• 

From the preceding considerations it will no doubt 
appear that each particular church has a right to make 
canons and to repeal them, provided only that nothing be 
enjoined which is contrary to the law of Christ, or for- 
bidden which is enjoined by that law. It will be admitted 
also that the New Testament contains the law of Christ ; 
and it will not be denied, at least by the advocates of the 
proposed changes, that bishops are the successors of the 
apostles. 

It seems strange then that, in the discussion at last 
meeting of synod, so little stress was laid upon the 
election of Matthias, recorded in the 1st chapter of Acts. 
The passage is so clear, and the translation so exact, that 
no knowledge of Greek or of canon law is required to 
understand it : " They (the disciples generally, not the 
apostles) appointed two," and, after prayer, " they gave 
" forth their lots, and the lot fell upon Matthias, and he 
" was numbered with the eleven apostles." It is evident 
from this passage that the apostles did not vote separately 
from the disciples. This election, it would naturally be 
supposed, was a model instance, at the very commence- 
ment, of the organisation of the church ; but, at the 
Provincial Synod, it was explained away as an excep- 
tional case. Bishop "Wordsworth, in the same strain, 
commenting on the passage, says :# " The precise mode 



* Bp. Wordsworth— Greek Testament, Vol. I. 



15 

" which was here used in the election of Matthias seems" 
" to have been left in uncertainty, that it might not be 
" used as an example for the future ordinations of the 
" Christian ministry." That is to say, although the 
general method and principle are clearly recorded, we 
are to abandon them because it is not stated whether the 
lots were cast in an urn, or precisely how the names 
were written upon them. Cabassuetio also thinks the 
case exceptional.^ " Peter," he says, " could himself have 
" elected the new apostle in place of Judas ; but he pre- 
" ferred, because of his prudence and moderation, to 
" gratify the whole church." Canon Cookf explains 
the passage thus : " Appointed — or presented, nominated. 
" The nomination appears then to have rested with the 
''whole body of Christians; but the selection of the 
" individual in this case was referred to the Lord, and 
" the ordination was made unquestionably by the impo- 
" sition of the apostles' hands." Bingham does not think 
the case so exceptional. $ Instances similar, he says. " I 
" confess there are not very many ; but some few there 
" are, which show that that method of electing was not 
" altogether so singular as is commonly imagined. For 
" in Spain it was once the common practice, as may be 
" concluded from a canon of the Council of Barcelona, 
u anno 599, which orders that ' when a vacant bishopric 
" ' is to be filled, two or three shall be elected by the con- 
" ' sent of the clergy and people, who shall present them 



* Cabassuetio Synopsis Concilliarum, vol. I., p. 278. 

Petrum quidem potuisse per seipsum novum, loco Judge, apostolum eligere, 
sed maluisse per prudentiam et modestiam universal ecclesire gratificari. 

De Marca, who was a Gallican, could not go so far, but thinks James and 
John helped Peter to regulate the form of the election. 

f Canon Cook, Commentary on Acts. 

X Bingham's Works, Vol. II., p. 3. 

Thomassiu Anciennc et Nouvelle Discipline de l'Eglise, Vol. IV., p. 237, 
also notices this custom. 



16 

" ' to the Metropolitan and his fellow bishops, and they, 
41 ' haying first fasted, shall cast lots, leaving the determi- 
4< ' nation to Christ the Lord ; then he on whom the lot 
shall fall shall be consummated by the blessing of con- 
u ' secration.' " In precisely the same manner the native 
Christian Church of Malabar proceeded in 1815 in the 
election of a bishop.^ An assembly was held of the pres- 
byters and chief laity, who put three names forward and 
made the ultimate choice by lot. This poor persecuted 
people could make out the meaning of the passage though 
they had been isolated for so long a period. There is in 
New Testament rules a universal applicability which the 
canons of councils do not appear to possess. 

When the Christian Church became a missionary 
church and sent out apostles to convert the heathen, it is 
evident that the missionaries must have been designated 
lor their work.f In 1he same way the Church proceeds 
now, as for instance in Canada, in the case of the Bishop 
of Algoma, or in the North West Territories, where there 
is no organised Christian community. But it is these 
which are the exceptional cases ; for, as Maupied shows, 
as soon as there was a sufficiently numerous body of 
Christians, the Christian communities each elected their 
own bishop. :f 

The question before us is not concerning missionary 
bishops, but concerning the succession to sees in settled 
and organised communities of episcopalians ; and in 
order to shew that the custom which now obtains in 
Canada is supported by the most weighty authority, it 

* Howard— Christians of St. Thomas, p. 65. 

f Bingham's Works, Vol. II., p. 27. 

t Maupied Juris Canonici Compendium. 

Ab apostolis vero creati, eorumque successores episcopi alios similiter 
constituerunt. Principio vix prassentiam ac testimonium prsestabat, episcopi 
eligebaut populus assentiebat"; at post modum Christianus populus numero- 
-sior factus panlatim prsesentiam ac testimonium extendit ad suffragium. 



17 

will be best to give a sort of catena of extracts from authors 
of well known ability and learning, but before doing 
this it will be well to refer to those who have been freely 
quoted upon the other side. 

Peter de Marca, who was made Archbishop of Paris 
for his defence of the Grallican liberties, and whose name 
is of much weight, although his book is upon the Index, 
is of opinion that in ante-Nicene times election and ordi- 
' nation were usually performed together.^ The bishop or 
bishops sought the testimony^ or suffrage of the clergy and 
people by questioning, and awaited their consent before 
ordaining. Their great aim was that, under no circum- 
stances, a bishop should be obtruded upon an unwilling 
people, and therefore the desires and the votes of both 
clergy and people were absolutely necessary in order that 
the ordination should be peaceably performed. The 
clergy,^ he thinks, had no power or rights which the people 
did not equally share, but he thinks that the bishops had 
the chief part. 

This must be so if election and ordination are at any 
time considered together ; for in ordination no part what- 
ever of the ceremony devolves upon any but the bishops, 
while election is a joint function of clergy and laity. 
Moreover, as Bingham observes (vide p. 29), it is of no 
consequence what words are used, there was in the hands 
of the people and clergy a real and§ effective power by 

* P. 358. — De Concordia Sacerdotii et Imperii. 

Sed in personas deligendas examine vacantis ecclesias clerum et populum. 
interrogantes, eorum testimonia exquirabant, atque consensum prasstolaban- 
tur, ne invitis obtruderetur Episcopus. Itaque desideria et vota cleri atque 
populi necessaria quidem erant nt in pace fieret ordinatio. 

f P. 359. — Testimonium aut suffragium. 

% Non reperio discrimen aliquod constitution a veteribus inter clerum 
civitatis et populum. 

§ DeMarca p. 358". — Solum testimonium et consensum designandi Episcopi 
clero et populo tribuit, ipsam vero dt-signationem sive electionem et judicium 
Metropolitano cum synodo. What is this in reality but saying that the 
people nominated and the bishops consummated the choice ? 



18 

which the name of the person they wanted was put for- 
ward, and if> as De Marca concedes, the bishops always 
chose, or designated, or elected, that person and ordained 
him, the dispute is one of words not of things. Doubtless 
if # there was any defect in the qualification the bishops 
would not accept him. No one ever pretended that 
Catholic bishops would ordain an Arian, for instance. In 
this respect it is easy to see that the bishops had the chief 
part. 

De Marcaf adds that this opinion is a new one, and 
that many will distrust it because of its novelty. He then 
goes on to say that in the "Western Church election began 
to be separated from confirmation, and this last from ordi- 
nation ; then the election itself was attributed to the clergy 
and people, and the decree of election was reserved to the 
judgment of the Metropolitan and bishops, and that after- 
wards, on account of the long intervals between the 
assemblies of synods, it was reserved to the Metropolitan 
alone. The Nicene Council, he thinks, laid down the 
powers of the bishops, leaving the rights of the laity and 
clergy to custom. If this be so, the powers which 
required a special canon could not have been established 
very firmly in ante-Nicene times, and this De Marca 
acknowledges, for he says, on page 251, that it is certain 
that bishops before the Nicene Council were elected by 
clergy and people. 

The work of ThomassinJ is of great authority in the 
Roman Church to the present day. It is a work of 
learning and research, but the author's conclusions upon 



* p. 364. — Observabat ista vetus illud institutum, ut ab Episcopis, a 
clero et a plebe in unam congregatis eligeretur, qui praeficiendus erat ecclesice 
vacanti cum illo tamen discrimine, quod superius adnotavi, ut judicium essct 
Episcoporum, cleri vero et populi suffragium. 

f P. 358. — Non me latet, quin plerisque nova videri possit haec opinio 
-et fortasse ob novitatem periclitari. 

t De Antiqua et Nova Disciplina Ecclesias. 



19 

historical points are so much influenced by certain pre- 
conceived theories that it becomes necessary to draw 
from the facts he relates the real inferences, rather than 
to receive them from the author's own statement. In 
this matter he lays down two theories, both of which 
deliberately beg the question at issue. 

He commences by laying down the maxim that^ 
" the power of calling bishops to the supreme dignity of 
" the royal priesthood of Jesus Christ, being the partici- 
" pation and the complete imitation of the eternal autho- 
" rity of Grod the Father over His incarnate Son, cannot 
" be more justly entrusted than to the bishops, who are 
41 the most lively images of G-od upon earth." 

Now, if this be established, the whole question falls to 
the ground, for who can or ought to resist the living 
representatives of G-od upon earth? Why should lay 
people, or the inferior clergy, be called on, in or out of 
synod, to take part in the government of the Church ? 
Some simple method of assessment is surely all that is 
necessary. Even the most extreme advocates for the 
apostolic succession in the Church of England do not go 
so far. In commenting upon the recent unanimous deci- 
sion of the English Episcopate upon the Society of the 
Holy Cross and the question of confession, the editor of 
the Church Times (July 13) says that " the powers of hell 
" have done their worst" acting, he means to say, through 
the bishops. A most inelegant expression if applied even 
to laymen, and removed toto ccelo from the sentiments of 
the learned and pious Thomassin. So much for the 
extreme Anglo-Catholic view of Episcopacy. As for 
Thomassin, his theory is essential to him when he treats 
of the primacy and vicarate of Peter, but the vast majority 
of English churchmen do not go so far as to place the 
bishops above the canons, although they have a real 



* Thomassin Ancienne et Nouvelle Discipline de l'Eglise, vol. iv., p. 195. 



20 

reverence for the Episcopate. Some, however, think the 
bishops infallible, but it is only in so far as they happen 
to agree with them. 

The other question-begging assumption of Thomassin 
is that because ordination in the early times usually fol- 
lowed immediately after election,^ the word cheirotonia 
signified election as well as ordination. If this be so, 
ordination having never been claimed by any but bishops, 
the question again falls to the ground. 

This view is combated by De Marca, Yan Espen, 
Hefele, Bingham, and all other western canonists. For 
nothing is easier than to distinguish between election and 
ordination in the case of the seven deacons in the 6th 
chapter of Acts. " Look ye out" said the apostles, speak- 
ing to the " multitude of the disciples" " seven men from 
" among you." "And they chose Stephen" and six others, 
" whom they set before the apostles, and when they had 
" prayed they laid their hands on them" It is true that in 
classic Greek, the word cheirotonia meant voting by 
stretching out the hand in an assembly, but from the 
commencement of the Church it was the word appro- 
priated to the stretching out the hand in ordination. The 
Apostolic Canons enjoin that ordinations (cheirotoniai) 
shall be performed by two or three bishops, and Thomas- 
sin (having doubtless before his mind some precedents in 
the Homan Church) f thinks that one bishop is suffi- 
cient. It is absurd to suppose that in such a case a bishop 
would first vote by show of hands and then ordain ; so 
Thomassin thinks that, in ordaining, the bishops elected 
and thus he really eliminates election altogether, thereby 
leaving totally unaccounted for a custom, on his own tes- 
timony, general in the Church for eight centuries after 
the Council of Nicsea. If any doubt could arise upon this 



* Vol. IV, pp. 196, 197, 225, 229. 
t Vol. IV., p. 197—242. 



21 

question, a reference to the 28th Canon of the general 
Council of Chalcedon would settle it, where election is 
called psephisma and precedes cheirotonia, or ordination. 
About psephisma there is no question, for psepJios was the 
small pebble used in voting by ballot. 

It is true, says our author,^ that St. Cyprian (LI. Epis., 
4) attributes to the people the principal power of electing 
worthy and rejecting unworthy persons as bishops ; but 
Cyprian only means that they did it by their testimony 
(which he elsewhere calls suffrage), for the bishops were 
not informed in detail of the life and actions of indivi- 
duals, whereas nothing could escape the eyes of the 
people of a diocese. The theory in Canada is the very 
reverse of this. In this way only, continues Thomassin, 
the people were in some degree masters of the elections. 

It must be observed that this theory of Thomassin's 
applies only to the period preceding Constantine. For 
the whole period after he recognises fully the power of 
the clergy and people in elections, only he thinks that 
elections did not depend absolutely upon the people. The 
bishops had a judicium in the matter. This seems to him 
to have necessarily resulted from the separation of election 
and ordination, and the well-settled usage which was 
brought to light at the accession of Constantine could not 
possibly be explained otherwise, and so he frankly admits 
it. He quotes the Council of Antioch,f A.D. 341, to shew 
that a bishop could not be translated to another see even 
if chosen by the people ; and the Council of Chalcedon, 
which decreed in the case of a disputed election at Ephe- 
sus that he should be bishop who shall be elected (psephi- 
zomenos) by all those who are to be under his care. This is 
evidently the origin of the maxim of St. Leo the G-reat : 
Qui prwfulurus est omnibus ab omnibus eligatur" 

Passing on to authors of acknowledged weight in the 

* Vol. IV., p. 195. 
f Vol. IV., p. >99. 



22 

Church of England, we will quote the opinion of Dean 
Hook, a very learned ecclesiastical historian. 

hook's church dictionary, page 114. 

•' When cities were first converted to Christianity, the 
" bishops were elected by the clergy and people ; for it 
" was then thought convenient that the laity as well as 
" the clergy should concur in the election, that he Who 
11 was to have the inspection of them all might come in 
41 by common consent. 

" But as the number of Christians increased, this was 
"' found to be inconvenient ; for tumults were raised, and 
* { sometimes murders committed, at such popular elec- 
*" tions. To prevent such disorders, the emperors being 
*" then Christians, reserved the election of bishops to 
" themselves ; but the Bishop of Home, when he had 
" obtained supremacy in the Western Church, was 
" unwilling that the bishops should have any depend- 
" ence upon princes ; and therefore brought it about that 
" the canons in cathedral churches should have the 
" election of their bishops, which elections were usually 
" confirmed at Rome." 

This is an admirable summary of the whole question 
from a historical point. The Bishop of Eome claimed 
the right of confirmation under the canons of the very 
Council of Nicsea which are now urged upon us. He 
.claimed it as patriarch. There was in early times no 
representative system answering to our lay delegation in 
.synod, and the populace were whipped up by the clergy 
into opposing parties, as in the case of the contested elec- 
tion of Damasus and Ursinus at Rome, during which 137 
corpses were one morning dragged out of the Basilica of 
.Sicininus (now the Church of Santa Maria Maggiore). 
That estimable heathen,^ Ammianus Marcellinus, lays the 
whole blame upon the clergy, and a diligent perusal of 
the old histories will show the inferior clergy and monks, 

* Ammianus Marcellinus. Book XXVII , Chap. 3. 



23 

not only as instigators, but, their numbers being great, as 
.the chief participants in these riots. # The transfer of 
the power of election was as much aimed at this turbu- 
lence of the clergy, who were then the more to blame as 
they possessed the greater part of the learning and cul- 
ture then existing. There is no argument applicable to 
lay exclusion which will not tell to the same extent for 
clerical exclusion, for in the case of laymen the stimulus 
of ambition is at least absent. In the present time lay- 
men are accustomed to transact business in representative 
assemblies with dignity and order. Atf this very 
Council of Nicsea the Emperor, in his opening address, 
exhorted the bishops to unity and concord, and, heathen 
though he was, burned openly (with an oath he had not 
read them), before the assembly, the heap of accusations 
and recriminations which the individual bishops had 
poured in upon him after his arrival at the place of meet- 
ing. " It is the command of Christ," said he as the 
parchments smouldered in the brazier, " that he who 
" desires to be himself forgiven must first forgive his 
" brother." Strange words these to be thought necessary 
by an unbaptized layman at the first oecumenical council 
of Christian bishops. 

burns' ecclesiastical law, vol. I. 

" When cities were first converted to Christianity the 
" bishops were elected by the clergy and the people, for 
" it was thought convenient that the laity as well as the 
" clergy should be considered in the election ; that he who 
" was to have the inspection of them all should come in 
" by a general consent." 

This sentence is quoted with approval by Muscott — 



* Notes to De Marca — Book VI., Chap. 2. 
t Dean Stanley — Eastern Church, p. 220. 
Socrates — Ecclesiastical History, p. 19. To the same effect. 



24 

History of Church Laws in England. Burns gives as- 
his authority AylifFs Parergon. Dean Hook, finding 
the statement correct, also took this sentence from Burns, - 
wherewith to commence his article on the election of 
bishops, above cited. Sir Robert Phillimore^ also adopts 
it from Ayliff. 

ROGERS' ECCLESIASTICAL LAW. page 101. 

" Although it is clear that in the first ages of Chris- 
" tianity all bishops were elected by the laity as well as 
" the clergy, yet the Kings of this realm appointed bishops 
" from very early periods ; and as all the bishoprics in 
11 England were of the King's foundation, so the right of 
M patronage thereof accrued to him." 

For these statements Rogers cites AylifFs Parergon, 
Spelman's ^Concillia (p. 387), and Coke upon Littleton, 
134, 344. The same writer, citing as his authority 
Palgrave's Anglo-Saxon Commonwealth, pp. 173-4, says : 

" The Anglo-Saxon kings seem to have exercised the 
" power of nomination to bishoprics. When Edward the 
" Confessor notified the promotion of a bishop he simply 
11 declared his will by an act under seal. The authority 
" of the Bishop of Rome was in nowise recognised." 



* Ecclesiastical Law, p. 38. — Sir Eobert, at page 24, seems somewhat 
shaken by the authority of Thomassin, and says « that he establishes three 
" propositions with respect to the election of bishops during the first centu- 
11 ries : — 1st. That the bishops exercised the chief influence in the election of 
li another bishop. 2. That though the people were always among the elect- 
< ( ors, their voice carried less weight with it than that of the clergy. 3rd. 
" That the consent of the Prince was an indispensible preliminary to the 
" consecration of the Bishop by the Metropolitan." 

Concerning Thomassin, vide p. 18. It is only necessary to remark here 
that the mention of the Prince, in the third proposition, stamps the whole pas- 
sage as referring to the fifth and later centuries, for it is evident that although 
pagan emperors may occasionally have confirmed a disputed election, no 
prince, until the Christian religion became the State religion, would or did'i 
meddle in ordinations of bishops. 



u 



25 



ALLIES DUPIN — ECCLESIASTICAL WRITERS THIRD CENTURY, page 901. 

" After the death of those who had been ordained by 
the apostles, the people chose their ministers. The 
" bishops were ordained generally by several of their 
" brethren who laid their hands upon them." 

This passage is found in the treatise on Church Discip- 
line at the end of the 3rd century. The word ministers 
includes bishops as well as presbyters, the difference noted 
is that one bishop in the case of a presbyter was sufficient 
for ordination. Dupin is a writer of great authority. 
Cabassuetio, distinguishing between election, postulation 
and ordination, says that election was in the hands of the 
clergy and people, ordination in those of the bishops.^ 
But Dupin, referring to the fourth century, says : " The 
" bishops were ordinarily chosen by the clergy and people 
lt of the vacant church. The Metropolitan had to be 
" present at the ordination, and he could not perform that 
" ceremony unless he had at least two bishops of the 
41 Province with him and the others giving their con- 
41 sent." 

In commenting upon this canon, Yan Espen observes, 
that at that time, it was the custom that " the election and 
" ordination should take place together." The bishops 
present would then make their inquiry and examination 
and the whole business was completed forthwith. The 
consent of the absent bishops could not then refer to the 
person of the candidate but to the empowering of the 
bishops present to act for all ; for the reason of the canon, 
as Yan Espenf shews, was " to prevent secret ordina- 
tions." 



* Synopsis Concilliorum, Vol. III., p. 468. — Perspicuum est ab ecclesiae 
nascentis primordiis Episcoporum creationem fieri consuevisse accedentis 
jx>pulorum suffragiis, ut contigit in ipsius Matthias ad apostolatum electione. 

t Opera Omnia, vol. 3. p. 107. 



26 

milner's history of the church, edited by dean milner, vol. i., p. 441. 

11 The apostles, who were the first teachers, and who 
" planted the first churches, ordained successors — as far as 
" appears — without any consultation of their respective 
" flocks over which they were about to preside. But, as it 
" was neither reasonable nor probable that any set of per- 
" sons after them should be regarded as their equals, this 
" method of appointing ecclesiastical rulers did not conti- 
" nue ; and undoubtedly the election of bishops devolved 
" on the people. Their appearance to vote on these occa- 
" sions, their constraining of persons sometimes to accept 
" the office against their will, and the determination of 
" Pope Leo, long after, against forcing a bishop on a people 
" against their consent, demonstrate this. The characters 
" of men to be elected to this office were very strictly 
" examined. Public notice was given that any one might 
" inform against them if they were vicious or immoral. 
" The decision on their moral conduct was left to the 
" people ; that on their doctrine belonged chiefly to the 
" bishops who ordained them." 

Although the election was with the clergy and people, 
it is clear that no unorthodox person would be ordained. 
Election was a title to ordination, and, unless canonical 
objections were raised, ordination proceeded at once. 
Palmer^ says " when a See became vacant by the death 
" of its bishop, a successor was elected by the, clergy and 
" the people, and his claim to ordination thus commenced." 

HON. W. E. GLADSTONE. — ITALY AND HER CHURCH, page 18. 

" The Bishop himself was elected by the clergy, with 
" the concurrence of the people or their consent." 

CRIPPS' LAWS OP THE CHURCH AND CLERGY, page 74. 

" Election was in very early times the usual mode of 
" elevation to the episcopal chair throughout all Christen- 
" dom ; and this was promiscuously performed by the laity 
" as well as the clergy." 



* Kev. William Palmer — Apostolical Jurisdiction of the Episcopacy of the 
British Churches Vindicated, p. 18. 



27 

BARROW — TREATISE ON THE POPE'S SUPREMACY, page 161. 

" If we consider the manner in ancient times of electing" 
" and constituting the Roman Bishop, we may thence- 
" discern, not only the improbability, but iniquity of this 
" pretence ; how was he then chosen ? Was it by a 
" general synod of bishops, or by delegates from all parts 
" of Christendom, whereby the common interest in him 
11 might appear, and whereby the world might be satisfied 
" that one was elected- fit for that high office? No; he 
" ivas chosen, as usually then other particular bishops were, 
" by the clergy and people of Rome ; none of the world being 
" conscious of the proceeding or bearing any share therein." 

The force of this quotation for our purpose is in the last 
sentence. The " iniquity " referred to is the supremacy 
claimed by the Pope. The former part of the sentence is. 
necessary to the sense. 

Stephen's commentaries on the laws op England. 

" Election — the usual way in early times was per clerum 
" et populum, but becoming tumultuous, the emperors and 
" other kings took some portions of it in their own hands." 

DEAN MILMAN — HISTORY OF LATIN CHRISTIANITY, VOl. I , page 522. 

" Below the sovereign power, the people maintained 
" the right of the joint election of bishops with the clergy. 
" This old Christian usage would fall in with the Teu- 
" tonic habits. As the Teutons raised their king upon 
" the buckler and proclaimed him with the assent of the 
" freemen of the tribe, so the acclamation of the people 
" ratified or anticipated the nomination of the bishop." 

CANON ROBERTSON — CHURCH HISTORY, Vol. I., page 164. 

" Even to the end of the period (second and third cen- 
" tury) we meet with nothing like autocratic power in 
" the bishops. They were themselves elected by the clergy 
" and people ; they consulted with the presbyters in the 
" more private matters, and with the whole body of the- 
" faithful in such as concerned the community." 



28 

van espen's works, volume v., page 470. 

" And in the first place, so far as regards the election 
" of bishops, it is beyond question that for eleven centu- 
k ' ries it belonged to the clergy and people of the widowed 
" church ; so much so indeed that the holy fathers 
" thought that that rule of discipline descended from 
" divine and apostolic tradition. And, among others, St. 
" Cyprian speaks to this effect" in his 68th Epistle, which 
" is a S3^nodical one, written to the clergy and people of 
" Spain concerning the idolatrous bishops, Basilides and 
" Martial. The people, he says, following the precepts of 
" the Lord and fearing God, ought to separate themselves 
" from an overseer who is a sinner, and should not 
" partake in the sacrifices of a sacrilegious bishop ; seeing 
" that they (the people) themselves have the chief power of 
" electing ivorthy or rejecting unworthy bishops. Which 
" very rule, as we have seen, has come down from divine 
" authority, that the bishop, the people being present (or, 
" according to the Beneventan text, by the people zolio are 
" present), be chosen under the eyes of all and approved 
" worthy and lit by public judgment and testimony."^ 

Van Espen observes that in one important MS. it is " a 
plebe presente ;" this would show that the clause was not 
always in early times read as an ablative of circumstance. 

BINGHAM — ANTIQUITIES OF THE CHRISTIAN CHURCH, Vol. II., page 15. 

" And here, first of all, it will be proper to observe, that 
" there was no one universal unalterable rule observed in 

* Van Espen — Vindicias Resolutionis Lovamiensium — Opera, Volume V., 
page 470. 

Atque imprimis quod attinet Episcoporum electionem ; indubitatum est, 
earn per xi. secula pertinuisse ad Clerum et populum Ecclesise viduatas ; ita 
quidem ut hane disciplinam Sancti Patres ex divina atque apostolica traditione 
descendere existimarint. Atque inter alios sic loquitur St. Cyprianus Epis G8 
qua? est Synodica, scripta ad Clerum et Plebes in Hispania consistentes de 
Basilide et Martiale Episcopis idolatris. " Plebs inquit obsequens prseceptis 
Dominicis et Deum metuens a peccatore Prasposito separare se debet, nee se 
ad. sacrilegi sacerdotis sacrificia miscere ; quando ipsa maxime habeat potestatem 
vel eligendi dignos sacerdotes vel indignos recusandi. Quod et ipsum vidimus de 
divina auctoritate descendere, ut sacerdos plebe presente sub omnium oculis 
deligatur et dignus atque idoneus publico judicio ac testimonio comprobetur." 



29 

-" all times and places about this matter ; but the practice 
" .varied according to the different exigencies and circum- 
" stances of the Church. In the meantime I conceive 
41 the observation made by De Marca thus far to be very 
" true, ' that whatever power the inferior clergy enjoyed 
44 ' in the election of their bishop, the same was generally 
" ' allowed to the people or whole body of the Church, 
" ' under the regulation and conduct of the Metropolitan 
44 ' and synod of provincial bishops.' For their power, 
41 whatever it was, is spoken of in the very same terms, 
" and expressed in the very same words. Some call it 
" consent ; others suffrage or vote ; but all agree in this, 
44 that it was equally the consent, suffrage, vote, election 
" and choice both of clergy and people." 

# # # « And hence it appears further, that this 
" conjunctive power of clergy and people was not barely 
** testimonial, but, as Bishop Andrewes and Mr. Mason 
" assert, a judicial and effective power by way of proper 
44 suffrage and election ; and that as well in the time of 
" Cyprian as afterwards. For Cyprian speaks both of 
" testimony and suffrage belonging to both clergy and 
" people, and says further * that that is a just and legiti- 
44 ' mate ordination which is examined by the suffrage 
44 ' and judgment of all, both clergy and people.' So that 
44 they were then present at the choice of their bishop, not 
44 merely to give testimony concerning his life, but, as 
4 ' Bishop Andrewes words it, to give their vote and 
" suffrage in reference to his person." 



Bingham gives, learned authorities in support of vari- 
ous opinions. The passage cited contains his own 
opinion. He gives many varying ways in which bishops 
have been appointed, and shows that missionary bishops, 
and those sent to heretical communities were, as we have 
pointed out on page 16, nominated, not elected ; for he 
says (page 27) : — " Neither can we suppose the Bishop of 
"" Tomi, in Scythia, to be chosen by his people when he 
" was the only bishop in all that region." 

A perusal of the Ecclesiastical History of St. Gregory, 



30 

(A. D. 573) Bishop of Tours, will shew how extensively 
the practice of popular elections prevailed in G-aul^. At 
page 42, speaking of the successor of St. Martin, he says : 
" ay ant obtenu, par le vote des citoyens, les fonctions epis- 
copales," and on page 75 of the Bishop of Clermont, he 
says : " a ces paroles tout le peuple oubliant ses dissen- 
" sions, proclama que c'etait un homme digne et juste. 
" II fut done place sur le siege episcopal.'' — A. D. 460. 
Again, at page 111, " Alors le peuple ayant elu St. Quin- 
" tianus " application was made to the King for confir- 
mation ; and again, vol. ii, page 384, " Lorsque Quin- 
" tianus fut decede, les citoyens de Clermont s'assem- 
" blerent pour choisir un nouvel eveque. G-allus fut 
" choisi et partit pour aller demander sa confirmation au 
" roi Theuderic." St. G-regory finished his history A.D. 
594. He speaks of " l'autorite royale d' accord avec le 
" choix des citoyens," page 205, but he does not speak of 
any episcopal authority as necessary to confirm these elec- 
tions. The King is often said to have appointed, and two 
instances are given of elections, entirely episcopal, 
which were carried to the King for confirmation, but the 
custom is evidently that prescribed by the Council of 
Clermont, A. D. 533, " That he who is a candidate for a 
" bishopric shall be ordained by the election of the clergy 
" and people."! The bishops at this Council, wishing to 
strike at the royal confirmation, added, " with the consent 
" of the Metropolitan." But the Kings maintained their 
right, and there was no ecclesiastical confirmation in 
France other than ordination by the Metropolitan and 
Bishops, until the Popes, in the 12th century, wrested this 
power from the Kings. Palmer presses this point, and 



* See also De Marca — Concordia Imp. et Sac., p. 366, to the same effect. 

f Muscutt — History of Church Law in England, p. 195. Milner — History 
of the Church, vol. 3, p. 24. 



31 

Dean Milman^ cites a Council of Orleans to the same 
effect. 

We have seen, page 11, that the Council of Nicaea 
aimed chiefly at establishing the power of Metropolitans 
and Patriarchs. It has been long a matter of dispute 
whether or not that Council made any change in the 
manner of electing bishops. The Orthodox Eastern 
Church maintains that it did, the Catholic "Western 
Church vehemently denies it. The Greek historians, 
Balsamon and Zonaras, if they differ on other points, 
testify at least to the custom anterior to the Council. 
Balsamon says : — " Bishops were formerly elected by the 
" people generally, but as much scandal was thus created 
" the custom was abrogated by this Canon, and the elec- 
" tion given to the bishops alone." " This pseudo-patriarch 
of Antioch," says Cabassuetio,f "is in error, for there is here 
" no trace of change, and the elections of bishops were 
" made precisely as before, by the suffrage of the people, 
" excepting that they were under the government of the 
" bishops ; " and again, " The Nicene Council^ enacted this 
" only that the care of the election and consecration of the 
" new bishop should be with the Metropolitan ; and that 
" the other Bishops should assemble at the ordination of 
" him who was elected, so that the ordination should be 
" performed by three bishops at the least." 

That this is a perfectly sound view will appear from the 
account given of the actual circumstances under which 



* Council of Orleans, A. D. 549 : — " Ut nulli episcopatum prasmiis aut 
" comparatione liceat adipisci ; sed cum voluntate regis juxta electionem 
" cleri ac plebis." — Vide Milman, vol. 1, p. 519. 

t Vol. 1, p. 166. 

De Marca Concordia Imperii et Sacerdotii, p. 251, is very strong on this 
point, and there is not a single canonist of the Western Church who takes the 
other view. It is contrary to the recorded history of many centuries after the 
Nicene Council, both in the East and West. The Novels of Justinian, in the 
sixth century, are alone sufficient to condemn it. Dc Marca calls the notion 
a " hallucination." 



32 

this mooted fourth Nicene Canon was passed.^ It was 
aimed at the followers of Meletius, a bishop of Upper 
Egypt, who thought that no one who had lapsed during 
the preceding persecutions should again be received 
into the Church. He set up what he called the Church 
of the Martyrs, and, considering his Church to be 
purer than the rest of the Church Catholic, he went 
about ordaining bishops throughout all Egypt, much 
as Bishop Cummins did in America. This canon, as 
well as the sixth, was aimed at him, and it was a 
canon, as we have shown, page 13, which concerned only 
ordination, not election ; for, as Barrow says,f although 
" there is no express mention concerning the interest of 
' ; the clergy and people in election of the bishops, these 
" things are only passed over as precedaneous to the 
" constitution or ordination, about which only the Fathers 
" did intend to prescribe, supposing the election to proceed 
" according to former usual practice." Barrow proceeds 
to strengthen, by numerous instances, this position. He 
quotes Pope Celestine : " Let no bishop be given to them 
" against their wills ; let the consent and request of the 
" clergy, the people and the order J be expected"; and 
Pope Leo the G-reat : " When there shall be an election of 
" a bishop, let him be preferred who has the unanimous 
" consent of the clergy and people, so that if the votes be 
" divided, and part for another person, let him, by the 
"judgment of the Metropolitan, be preferred whose 
" merits and interest are greatest, only that none may be 

* Bishop Hefele— Vol. I., p. 334. 

So Van Espen — Opera, vol. 3, p. 108. " Ideoque hunc Canonem occasioni 
41 Meletii editum fuisse recte advertet Beveregius ad himc Canonem." 

f Barrow— Treatise of the Pope's Supremacy, p. 362. 

t By order is meant the municipality, according to Phillimore, p. 23, the 
nobles, according to DeMarca, p. 252, the magistrates, according to ThomassiD. 
The word might be mistaken as referring to the Episcopal order. It never 
does so in this connection, but always refers to some class of lay officials as 
distinguished from the populace. 



33 

14 ordained against the wills or without the desire of the 
" parties, lest the people contemn or hate a bishop whom 
11 they never desired." There is no reason, says Pope 
Leo again,^ that " they should be accounted bishops 
" who were neither chosen by the clergy nor desired by 
" the people, nor with the Metropolitan's order conse- 
" crated by the provincial bishops." Leo evidently 
held the fourth Canon of Nicsea in the same sense as 
explained by Barrow, Bingham, Stanley and the great 
majority of the canonists of the Church, as a Canon of 
ordination and not of election. What is meant by the 
consent of bishops is now evident, as well as the judicium o£ 
the bishops, referred to by St. Cyprian. 

"Whatever abstract theory men may please to adopt, 
as a matter of fact, the election by clergy and people 
remained customary upon the continent of Europe for 
many centuries. Yan Espen says (vol. i., p. 85) "until 
" the eleventh century." In the Eastern Church a jeal- 
ousy of the lay power was first manifested, and at the 
Council of Laodicea,f A.D. 385, the populace were exclu- 
ded ; but, as Yan Espen says $ it was the disorderly mul- 
titude, not the chief or representative laymen, who were 
intended ; because, for three hundred years later, writers 
speak of the people as still having a leading part. Justi- 
nian, in various novels § and constitutions, settled the 
method of episcopal elections in the East. He enacted 
that, whenever a vacancy occurred, the clergy and chief 
citizens of the diocese should assemble and choose three 



* Barrow on the Pope's Supremacy, p. 364, and Decretum Dist. 62, Can. 1 

f Canon 13 — That the multitude he not permitted to elect those who are 
about to he ordained to the priesthood. According to DeMarca plebicula — i.e.,. 
rabble ; p. 252. 

% Vol. 1, p. 82. 

§ Corpus Juris Civilis, Nov. 137, Cap 1. 
« « « Nov. 122, Cap. 1. 



34 

names. They should then solemnly testify that these 
men were known to them to be qualified for ihe office of 
a bishop, reciting- point by point the canonical qualifica- 
tions then necessary. From these names the ordaining 
authority (then the Metropolitan) selected one. By this 
method the multitude were excluded and disorder was 
avoided. It is probable that the laity were not altogether 
excluded in the East until A.D. 787, at the second Council 
of Nicoea.^ 

In the "Western Church the lay element in elections 
lingered in the great historic sees of Eome and Milan 
until the eleventh century, and in France and G-ermany 
traces of their concurrence may be found even in the 
twelfth century. f Concerning the Bishops of Eome, Hal- 
lam says : — " They, like the bishops of inferior sees, were 
'- regularly elected by the citizens — laymen as well as 
■" ecclesiastics. But their consecration was deferred J 
" until the popular choice had received the Sovereign's 
" sanction." Occasionally § the Emperor || appointed the 
popes, but, in A.D. 1059, Pope Nicholas II. ^f vested the 
election in the cardinals, the confirmation remaining as 
before in the Emperor. This method of election,^modi- 
fied by the decrees of Pope Alexander III. and of Gregory 
X., at the Council of Lyons, A.D. 1272, is adhered to in 
its main features to the present time. The College of 



* Cabassuetio, vol. 3, p. 468. 

f Hallam— Middle Ages, vol. 2, p. 172. 

t Hallam — Middle Ages, vol. 2, p. 174. Decretum Gratiani, Dis. 63, 
Can. 21. 

§ Decretum Gratiani, Dis. 63, Can. 22. 

|| Barrow on the Pope's supremacy, p. 373. 

^ Decretum Gratiani, Dis. 23, Can. 1. 

** Van Espen shows that the transfer of the power of election to the Col- 
lege of Cardinals, at Eome, and to Cathedral Chapters elsewhere, took place 
in the 12th and 13th centuries, about the same time and for the same reasons. 
The power of Home was then at its zenith, under the haughtiest and ablest of 
-the Popes. — vol. 1, p. 85. 



35 

Cardinals now consists of six cardinal bishops, fifty cardi- 
nal priests, and fourteen cardinal deacons — representing 
the suburban dioceses and parish clergy of the city of 
Rome. These all vote^ together as one body,f the bishops 
as well as the deacons having each one vote. In the 
ancient see of Eome, from the earliest times to the present 
•day, the episcopal veto on elections, now claimed as 
primitive custom, was never in use. 

The same remark may be made concerning the English 
Church from the very dawn of English history. No 
instance of the exercise of such a power seems to be any- 
where recorded. Hooker (Works, vol. ii., p. 555) seems 
to know nothing of it. "Three things," he says, " are to 
" be considered in a bishop : — 1. The power whereby he 
" is distinguished from other pastors. 2. The special 
" portion of the clergy and laity over whom he is to exer- 
" cise his bishoply power. 3. The place of his see or 
" throne, together with the profits, &c, thereto belonging 
" The first he says is received by consecration, the second 
" by election, and the third from the King." The people, 
he adds, " in election gave their testimony and shewed 
" their affection or desire, but the choice was wholly in 
" the sacred college of presbyters." 

In the councils of the Church, anterior to that of 
Nicsea, we have no mention of any power of restraint on 
episcopal elections. At the synod of Aries, A.D. 314, it 
was enacted that bishops should not ordain singly, but 
that seven, or at the very least three, should be present. 
(Hefele — vol. i., p. 195.) The first of the Apostolic Canons 
(the most of which date from an early age) provides only 
that two or three bishops shall be present at ordinations. 
(Hefele— vol. i., p. 458.) 

In commenting on the canon of Nicssa in question. 



* Trollope on Papal Conclaves, 
f Cartwright on Papal Conclaves. 



36 

Bishop Hefele is very precise, following the indications 
of the custom which prevailed in the time of Cyprian in 
the African and Spanish churches. Quoting Cyprian, he 
says (vol. i., p. 333) : — " In almost all provinces the busi- 
" ness is managed in this manner. The nearest bishops 
" in the province meet in the city for which the election 
" is to be held. The Bishop is then elected plebe presente ; 
" the people are bound to be present at the election, for 
" singulorum vitam plenissime novit. The episcopal dignity 
" is after that conferred universes, fraternitatis suffr agio and 
" episcoporum judicio." Again, quoting Yan Espen, he 
says : — " The fraternitas, that is the clergy and laity who 
" are interested in the choice, had the right of presenta- 
" tion the bishops had afterwards to decide. They had 
" then the principal part to perform." They had in fact 
to ordain, and if the canonical qualifications were present 
they did ordain. This is the essential part of the whole 
matter. As to the election and presentation, St. Cyprian 
says the people had the chief part. That the bishops 
might refuse to ordain for any specified canonical reason r 
is not disputed by any reasonable person. Nor is it dis- 
puted that great care should be taken in the appointment 
of bishops. Upon this head a speaker at the Provincial 
Synod alluded to Arius as a warning against popular 
elections. Now Arius lived at a time when, if ever, this 
asserted custom of episcopal veto prevailed. If then Arius 
was the choice of a popular election, and the bishops had 
the veto power, why did they not exercise it if they 
thought him unworthy ? But Arius was not elected by 
the popular vote, as nearly all bishops then were. As a 
matter of fact, Arius never was a bishop at all. Athanasius, 
however, was. elected by popular vote,^ and Ambrose of 
Milan,! and Gregory the Great,! and Leo the Great of 

* Barrow — Pope's Supremacy. 

f Socrates — Ecclesiastical History, p. 251. 

\ Gregory of Tours, vol. 2, p. 241. 



37 

Kome, and Cyprian of Carthage.^ Ambrose, perhaps the 
grandest Bishop who ever lived, was elected while a 
layman, and before he was baptized.f "" You," says St. 
Ambrose, speaking of the people of Milan, " You are my 
" parents, who have bestowed upon me my bishophood. 
" You, I tell you, are at once my parents and my children. 
" You are my children if I take you one by one. You are 
" my parents if I take you as the whole." These are 
notable instances of great bishops whom the persistent 
will of the people forced into their sees contrary to their 
own wishes, and they stand out as bright beacons to tell 
us that the Spirit of Grod does not limit His influence to 
the clerical orders. 

Turning to the body of the Canon Law we find that in 
the first part of the Decretum, with which the Corpus 
Juris Canonici commences, the fourth canon of Nicsea is 
placed under the heading of Ordination,! not of Election. 
The dominating influence of the clergy and people may 
be traced through the whole. It is they alone who are 
concerned in elections, and, before the Canon of Nicsea, 
A.D. 325, there is no trace, even in ordinations, of the 
assembly of the bishops and Metropolitan upon such 
occasions. The false Isidore, indeed, thinking that it 
w T ould be useful to have earlier authority, inserted four 
spurious decretals of Anicetus§ and Anacletus, dated about 
A.D. 171 and A D. 103, in one of which a rule similar to 
the Nicene, is said to be apostolic. There are many 



* Jeremie — History of the Christian Church, p. 111. 

f Decretum Gratiani. — Note on Canon 8, Distinction 61. So also St. 
Nicholas was elected pope, and St. Severus archbishop, while laymen. 
The canons in the Decretum forbidding the election of laymen commence 
from the sixth century. 

J Dist. 64, Can. L — The same view is taken by Isidore and Dionysius, who 
are followed by Gratian, in using the word ordinari. 

DeMarca, p. 252, thinks it refers solely to confirmation. 

§ Dist. 64, Can. 2 and Can. 4, and both Canons of Dist. 66, are admitted 
to be spurious by all. 
3 



38 

discordant canons in Gratian, relative to the royal power 
of confirmation. Sometimes it is affirmed and again 
denied ; and again other canons go the length of giving 
the Kings or Emperors the power of nomination. Gratian^ 
himself thinks that properly speaking the election belonged 
to the clergy and the petition to the people, bnt Bingham 
shows this is a question of names only, the thing itself 
was the same, and a concurrence of both orders was re- 
quisite. Pope Gregory the Greatf writes to ascertain if 
an election at Milan really resulted in the unanimous 
choice by ihe clergy and people of one Constantius, and 
If so, to cause him to be ordained by the neighbouring 
bishops, as ancient custom demands. Stephen J writes to 
the Archbishop of Ravenna about a vacancy in the see of 
Imola ; the clergy and laity are to be called together, and 
the Archbishop is to ordain him, whom they elect, if no 
canonical objection can be made to him. In like manner 
Nicholas I.§ writes to the same see saying that no one is to 
be consecrated unless elected by the clergy and people. 
It is clearly laid down|| that no one can be consecrated 
unless he is canonically elected, and many qualifications 
and disqualifications are given as being applicable at 
various times to candidates for episcopal ordination. 

Gratian^" says that no one was ordained without exami- 
nation, and a form of examination which was adopted at a 
Council of Carthage,^ A.D. 398, is given. The candidate 
who is elected by the clergy and people is ordained if this 
examination is sustained, and a decree of the Council of 



* Note to Dist. 62. 
t Dist. 63, Can. 10, A.D. 593. 
% Dist. 63, Can. 12, A.D. 886. 
§ Dist. 63, Can. 13, A.D. 857 
|| Dist. 62, Can. 3. 
^ Note to Can. 4, Dist. 24. 
** Can. 2, Dist. 23. 



39 

Laodicea^ is quoted, that bishops shall be ordained after 
examination, byj the judgment of the Metropolitan and 
neigboring bishops. In the 34th Canon of the 63rd Dis- 
tinction, a capitulary of the Emperor Lewis, A. D. 803, is 
embodied, to the effect that elections shall be made by 
the clergy and people, according to the canons of each 
diocese, without the intervention of the Emperor. This 
intervention of the Emperor, and of great princes it is 
only which is aimed at in Canon 1 of the 63rd Distinction, 
in a decree of Pope Hadrian, A.D. 869, at that Council of 
Constantinople,when the whirl of controversy was commen- 
ced which resulted in the great schism of East and "West. 
The inference from the whole tenor of G-ratian's decre- 
tum is that ! the election was solely with the clergy and 
people,! and that if the person elected was canonically 
qualified he must be ordained.J In cases of doubt the 
bishops, or generally the Metropolitan, acted judicially 
and decided according to the laws then in force. At or- 
dinations three bishops were to be present, the others as- 
senting. The assent signified is a canonical assent, pre- 
cisely as the obedience promised in the offices of ordination 
of priests and deacons is a canonical obedience : both are 
regulated by the laws of the church. No where is there 
any sign of the absence of this assent invalidating the 
election, nor an instance of its having been withheld ; for 
if there was no legitimate objection the assent must be 
given. Such a thing as an election over an election, 
which is really what is now claimed for the House of 
Eishops, is a novelty of very recent date, and originated, 
probably, in the United States of America. 

* Can. 4, Dist. 24. 

f Van Espen remarks, p. 85, that throughout the whole of the Decretum 
of Gratian, there is no allusion to Cathedral Chapters. 

% So Van Espen Jus. Eccl. Univers, p. 107, — " Metropolitan una cum 
Episcopis comprovincialibus examine supra electionis forma ae persona electa 
facto, ad ordinationem seu consecrationem procederet, sielectionem canonicam 
'et personam electam idoneam reperisset." 



40 



IT 

THE " JUDICIUM 

If any one should suppose that at any time in the 
Christian Church the ordaining bishops had no canonical 
check upon the electing or nominating body, he will be 
very seriously in error. The appointment of bishops, as 
remarked by Mr. G-ladstone,^ " is in great degree analogous 
" to ordinary lay patronage, with respect to the order of 
" the priesthood." As Yan Espenf shows a principle of 
law underlies all elections that the person chosen must 
be " dignus," that is, canonically qualified. Papal dispen- 
sations or the abuse of regal power sometimes overruled 
disqualifications, but the law of the Church was recognised 
in these very irregularities. From time to time these 
qualifications varied. In another place the law of the 
English Church, now probably in force here, will be cited,, 
it is proper here to dwell upon the fact that the assent of 
the Bishops to an election was always a judicial, never an 
arbitrary assent. Upon this Binghamf observes : " When 
" the election of a person duly qualified, according to the 
" forementioned rules, was made, then it was the bishop's 
" office, or the Metropolitan's if the party elect was himself 
" a bishop, to ordain him." To the like purport Barrow, § 
" The clergy of the place did propound a person yielding 
" their attestation to his fitness for the charge ; which the 
" people hearing, did give their suffrages, accepting him if 
" no weighty cause was objected against him ; or refusing; 

* Church and State, vol. 2, p. 40. 

f Vol. 1, p. 705. 

t Vol. 2, p. 74. 

§ Treatise on the Pope's Supremacy, p. 358: 



41 

him if such cause did appear ; then upon such recom- 
mendation and acceptance the bishops present did 
adjoin their approbation and consent."- This consent 
was judicial, and was never witheld unless for cause. 
Yan Espen^ shows that the choice of the people could 
not be rejected but for a legitimate reason. He then 
states in detail the method usually adopted. After the 
election a formal decretum^ a statement in writing of the 
result, was sent to the Metropolitan, who, with the assis- 
tance of the other bishops, examined the form of the 
election as well as the qualifications of the elect, and if all 
was found to have been performed canonically, the ordi- 
nation proceeded in due course. 

" It is not the business of the Synod of Bishops to elect 
" a bishop for a vacant see," says DeMarca,t "but to examine 
" whether the election is canonically made, and whether 
" no legitimate impediments stand in the way of conse- 
" cration." And the same author adds :§ — " The autho- 
■" rity of the Metropolitan and of the provincial bishops is 



* Hoec ostendunt, Metropolitanum et Episcopos Comprovinciales non 
ita fuisse electione populi et cleri constrictos, quin earn ex causa legitima 
rejicire possent. — Van Espen. Jus. Ecclesiasticum Universum, p. 84. 

f Hoc decreto accepto, Metropolitanus convocatis suae Province Episcopis 
turn electionis formam, turn qualitates Electi examinabat ; qua} si examine 
institute- Canonica reperiabantur, Electum cum consensu Episcoporum sure 
Provincial in Episcopum consecrabat. — Jus. Ecclesiasticum Universum, p. 84. 

X DeMarca Concordia Sacerdotii et Imperii, p. 251 — Ea nou erat prcecipua 
istius Concilii cura ut Episcopum eligeret in sede vacante, sed ut examinaret, 
an electio canonica esset, an electus canonicis impedimentis prohiberetur 
accedere ad Episcopatum, ob bigamiam videlicet, retatis defectum, aut ignor- 
antiam ; et utrum accusatio aliqua adversus eum instituta esset, et si nihil 
horum obsisteret, ordinatio peragebatur. 

§ DeMarca Concordia Imp. et Sac, p. 251 — Auctoritas ilia (Metropolitan! 
et Episcoporum Comprovincialium) in ea versatur, nou ut electio ab illis 
celebretur, sed, ut earn approbent aut repudient, prout consentanea fuerit aut 
contraria canonibus, — atque dein electi ordinationem aut consecrationem pera- 
gant. Certum itaque est Episcopos aute Concilium Nicamum electos fuisse, 
cleri et populi suffragio. 



42 

" not concerned in the carrying on of an election, bnt that 
11 they approve or reject it according as it may be in 
" accordance ivith, or contrary to, the canons ; and that 
" afterwards they perform the consecration or ordination 
" of the elected person. It is, moreover, certain that before 
" the Nicene Council bishops ivere elected by the suffrage of 
" the clergy and people." 

Many quotations to the same purport might be made, 
but these will no doubt be sufficient to show that the 
bishops never had the power of excluding from their 
order any one who might be canonically qualified and 
duly elected, and that, in the examination of elections, 
they proceeded in the same manner as civil judges in 
secular elections, not by arbitrary will, but by the laws 
laid down by the Church. To assert the contrary is to 
place the bishops above the canons and to introduce into 
the English Church the procedure " ex informata conscien- 
tia" — an extra-judicial process^ applied sometimes in the 
Roman Church, since the Council of Trent, either to block 
the advancement of a clergyman or to inflict censure 
without reason given or fault alleged. It is foreign to 
English notions of right, as it is confessedly contrary to 
the principles of canon law ; for to refuse assent without 
reason given would be to inflict censure upon the Bishop 
elect who is presented for ordination — an injury the more 
intolerable because it would be inflicted in the dark. 

On the other hand, the recognition of the right of the 
bishops to reject for legitimate cause only, reconciles the 
contradictions of opposing canonists, and that which 
under any other theory is a mass of confusion becomes a 
concordant and intelligible whole. The change proposed 
by the innovating canon must, lead to contention and 
strife, for it is, in effect, an election over and subsequent 
to the election by the Diocesan Synod, so that a bishop 



* Vide Evidence of Cardinal Cullen in the O'Keefe case. 



43 

elect might be rejected not only because he was disliked,, 
but because the bishops had adopted some peculiar canon 
or set of canons to guide their own proceedings in such 
cases. At the Montreal election the first collision between 
the bishops and Synod was caused by a resolution sent 
down " that the Metropolitan should be selected from the 
11 Episcopal order." This was an uncanonical rule, and 
was violently resented. The House of Bishops soon 
placed itself in the right, but the very making of the 
resolution shows the danger of a permanent ^antagonism.. 



Y. 

THE ENGLISH LAW. 

There are recorded in Bingham nine distinct opinions.,, 
each supported by learned authority, concerning the vary- 
ing methods of electing bishops in primitive times, and, 
although the opinion he has adopted has the merit of re- 
conciling and uniting the largest mass of authority, and 
the method now in use in Canada is, in itself, of the most 
undoubted antiquity, we gladly pass on to the firmer 
ground of English law. 

It is stated by Bishop Gibson,^ that " the bishoprics of 
" England, being all of the king's foundation, he is in 
" right thereof patron of them all ; and being anciently 
" donative, they were bestowed per traditionem annuli et 
" baculi, as our books and law affirm." For in ancient 
times in England there seems never to have been any ob- 
jection taken to the royal appointment of bishops any 
more than to the royal appointment of any other great 
magistrate. Besides, at the first, the bishops were royal 
chaplains, and their dioceses coincided with the ancient 



* Codex Juris Ecclesiastici, vol. 1, p. 121, 



44 

limits of old petty Saxon kingdoms. They existed before 
parishes, and hence the saying, that the cathedral is the 
parish church of the diocese. Gradually under the or- 
ganizing hand of Theodore of Tarsus,^ the English eccle- 
siastical system took shape. The missionaries became set- 
tled clergy, and the chaplain of the nobleman or great 
land-owner became the parish priest, nominated to his 
benefice by the descendants of its founder, in the precise 
method in which the king nominated to the episcopal 
sees. We have seen (page 24) the method in use in 
Edward the Confessor's time ; the ancient kings of Wales 
nominated in like manner. To this ricrht of nomination 
the English kings tenaciously clung, and although it was 
wrested from them for a short time, under Henry I. and 
Henry II., it was not until the reign of John that the 
elections finally devolved upon the chapters, but from 
that time the Papal power (then at its zenith), under 
various pretexts and by the multiplication of forms, in- 
sensibly drew the larger number of appointments into 
the hands of the Popes. This continued until the time of 
Henry YITL, when the Crown resumed its ancient 
rights by really nominating under the form of the conge 
(Telire which Henry I. had instituted. The nomination 
was contained in the letter-missive which was thence- 
forth sent with the permission to elect. 

During the reign of Charlemagnef popular election in 
France and Germany was a mere form. The Emperor 
absolutely nominated ; but in the 12th century, after a 
long struggle with Rome, the Chapters obtained the 
privilege, for the prior custom of popular election was 
very uncongenial to the notions of rulers in those des- 
potic times. But the Kings of Spain,:}: after the 7th cen- 
tury, never gave up their power of nomination. The 



* Green's Short History of the English People, p. 65. 
f Milman's Latin Christianity, vol. 2, p. 495. 

t Milman — Latin Christianity, vol. 1, p. 521 — Decree of Council of 
Toledo, " Quod regiae potestatis sit eligere episcopos." 



45 

Kings of France won back the right by a concordat^ be- 
tween Francis I. and Leo X., and in nearly all Roman 
Catholic countries, to the present day, either by ancient 
custom or by concordat with the Pope, the nomination of 
bishops is in the hands of the Crown. 

But if, as we have seen (page 40), a bishopric was 
considered as a larger benefice,! the unvarying law of 
benefices applied throughout. "Whether the prelate was 
presented by king, chapter or people, he must be a pro- 
perly qualified person according to the laws of the Church 
at that time. So it was formally expressed by Lord 
Chelmsford :J " If the clerk be idonea persona the Bishop 
" is bound to institute ;" and the same law applies to the 
case§ of bishops in the Church of England, but in practice 
the statute of praemunire (which is inapplicable to Canada) 
checks the full operation of the canon law. This point 
has been raised four times since the Reformation — first at 
the confirmation of Bishop Montague, when the objec- 
tions were not heard owing to a defect of form, although 
the Yicar-G-eneral acknowledged that had the proper 
forms been observed he would have heard the applica- 
tion. In 1848 the Dean and Chapter of Hereford were 
compelled to elect Dr\ Hampden, much against their will, 
and at the confirmation the Court refused to hear objec- 
tions. An application was made to the Court of Queen's 
Bench for a writ of mandamus to compel the Yicar-Grene- 
ral to hear the objector. The four judges who heard the 
application were equally divided, and the writ did not 
issue. In the case of Dr. Temple the objectors were heard 
by the Vicar-G-eneral, Sir Travers Twiss, but their allega- 



* Dupin — Droit Public Ecclesiastiquc. 

fPhillimore — Eccles'astical Law, vol. 1, p. 26. 

% Ex parte Jenkins, 2 P. C, 258. 

§ " It is," says Phillmore, " the ' opinion of all canonists that Catholic 
" Princes, in countries where Church and State are united, have a right to 
" nominate the bishop as a private patron, but the person must be idoneus." 



46 

tions were not admitted to proof, for he decided that they 
had come too late and that he had no power to do aught 
but confirm after the issue of the Queen's mandate.^ 
The proper course, in his opinion, would have been by 
petition or humble request to the Queen not to issue her 
mandate for confirmation. The matter was not in this 
instance carried any further, and the confirmation and 
consecration were completed. If, however, in these 
instances the Archbishop and consecrating bishops had 
refused to proceed, we would have had a precise parallel 
to a case which might arise in Canada, for, in the words 
of Mr. Justice Patterson,! " if any lawful impediment came 
" to his (the Archbishop's) knowledge, I cannot believe 
" that the legislature intended to force him, knowingly 
" and without regard to such impediment, to perform the 
" solemn act of consecration." 



VI. 

THE LAW IN CANADA. 

If any body of persons, said Lord Eomilly,J band them- 
selves together and call themselves the Church of 
England, they are by implied agreement bound to its 
laws, discipline and ordinances except so far as any 
statutes may exist, which (though relating to this subject) 
are confined in their operation to the limits of the United 
Kingdom of England and Ireland. This judgment is fol- 
lowed by Chief Justice Draper in his valuable report on 
the status of the Church of England in Canada ; but going 
beyond it, he shows from statutes, Colonial and British, as 
well as from the initial declaration which preceded all ten- 



* Phillimore — Ecclesiastical Law, p. 55. 
f Phillimore — Ecclesiastical Law, p. 60. 
% Bishop of Natal vs. Gladstone. 



47 

tatives towards synodal organisation, that the English 
Church in Canada is an integral part of the Church of 
England, in its faith, doctrine, and discipline. It may be 
said, without hesitation, that the Canon Law of the Cana- 
dian branch has for its foundation the Canon Law of 
the Mother Church, so far as it is applicable to this 
country, and so far as it is not altered by Colonial statutes 
or by the consensual legislation of the Colonial Synods. 
From this it will follow that the qualifications for a bishop 
elect in Canada are now the same as for a bishop in Eng- 
land. These qualifications are recited in the petition of 
the Proctor, who, in the name of the Dean and Chapter, 
in an English election sets forth the regularity of the 
election and the merits of the person elected. This 
instrument declares : lst.^ That the See was vacant ; 
2nd. That the Dean and Chapter, having appointed a 
day, duly summoned all concerned ; 3rd. That they 
unanimously chose the person elected ; 4th. That the 
election was published to the assembled clergy and 
people ; 5th. That the consent of the elected person was 
obtained ; 6th. That the person elected was a prudent 
and discreet man — qualified by his learning and know- 
ledge of the Holy Scriptures — exemplary in life and 
morals — of free condition, lawful age and legitimate 
birth — in priests' or bishops' orders — devoted to God — 
necessary to the aforesaid church — faithful and useful to 
the king and to his state and kingdom ; 7 th. That the 
election was notified to the king ; 8th. That the king had 
consented ; 9th. That the king had issued letters patent 
requiring the archbishop to confirm. Under the sixth 
article of this petition, therefore, the present legal per- 
sonal qualifications for a bishop in Canada will be found, 
and the choice of every diocesan synod is limited to men 
possessing them, for there is not here a " statute of prse- 



* Bishop Gibson, Codex Juris Ecclesiastic!, vol. 1, p. 129. 



48 

munire " to enforce an unreasonable choice as in England, 
and if a mandamus were applied for to compel the bishops 
to consecrate, the Courts would most certainly refuse to 
interfere unless a flagrant injustice could be shown. 

The form of confirmation has never been introduced 
into Canada. It was originally nothing but an enquiry 
as to who was elected, for in the early ages election was 
in itself confirmation,^ unless the election was disputed. 
So Aurelian, a pagan emperor, confirmed a disputed elec- 
tion at Antioch, and the emperors afterwards claimed 
that right when elections grew turbulent and as bishops 
began to hold lands. Until the eleventh century the 
bishops of Rome were confirmed by the emperors. f The 
popes gradually wrested this right from the sovereigns, 
and ousted the emperors from interference in papal 
elections. 

The three stages of election, confirmation and consecra- 
tion are easily distinguished in England. By confirma- 
tion! a bishop elect gains jurisdiction, and is enabled to 
administer the temporalities and spiritualities of his dio- 
cese. By consecration he obtains orders, and is enabled 
to perform those spiritual functions peculiar to the epis- 
copal order. A suffragan bishop is consecrated but never 



* Kev. Wm. Palmer — Episcopacy of the British Churches, vindicated 
against Cardinal Wiseman : " According to the discipline of the Church for 
11 more than a thousand years, election was immediately followed by ordina- 
" tion or consecration. There was no other confirmation of a prelate elect) 
u except his consecration." — page 19. 

This may have been the custom in some places, but it is clear that in the 
great Sees, such as Eome and Milan, the Emperor confirmed. But, as Palmer is 
contending against the ecclesiastical confirmation of the Roman Patriarch, he 
is clearly right to that extent, for the only confirmation known during that 
period was the confirmation of the lay power. Neither Roman Patriarch nor 
Provincial Bishops exercised that power. Under the present strained inter- 
pretation of the Nicene Canon they would have had it. See also Barrow 
p. 441, on the Emperor's power of confirmation. 

f Hallam— Middle Ages, vol. 2, pp. 174-5. 

,± Bishop Gibson — Codex Juris. Ecclesiastici, p. 133. 



49 

confirmed, and a translated bishop is confirmed but not 
consecrated. The Archbishop then, in confirming, is 
acting magisterially for the King. 

For this reason, it was that when the Sovereign ceased 
to nominate bishops in Canada, and when by election the 
clergy and people consented to the jurisdiction of a bishop, 
confirmation became an unmeaning form. So it is styled 
by the Duke of Newcastle. He says^ " it was never used 
" in respect to colonial bishops," and, " merely viewed as 
" an unnecessary form, its re-introduction would, in my 
" opinion, be unadvisable. I have, therefore, not sug- 
" gested it." Now, bearing in mind that confirmation, by 
the laws of England, is a conferring of jurisdiction, it is 
clear that the House of Bishops cannot employ it in the 
English sense, for jurisdiction in the colonies is consensual 
only, — and if, as decided by all the great lawyers in the 
Long and Colenso cases, the Crown cannot convey juris- 
diction, the House of Bishops have no inherent power to 
do so, for the diocesan synods, by election, confer the con- 
sensual jurisdiction, which is the only jurisdiction now 
possible. Moreover, if the Crown had formerly the power 
of conferring any jurisdiction over a diocese in Canada, the 
diocesan synods only could now possess it, for, by statute, 
the rights of the Crown in the appointment of bishops 
passed to the diocesan synods. 

When the whole course of the organisation of the Cana- 
dian Church is reviewed, this attempt, fundamentally, to 
alter the method. of appointment of its officers will appear 
in all the radicalism which really characterises it despite 
of its thin conservative varnish. For government by 
will, instead of government by law, is the essence of radi- 
calism, whether the will be of one or of many. Coesarism 
in the State and Vaticanism in the Church are radical, 
and not conservative forms of government. 



* Letter to Lord Monck — 12th April, 1862. 



50 

That the proposed change is radically subversive of the 
original consensual basis of ihe Church of England in 
Canada, will appear upon an attentive perusal of the fol- 
lowing extract from the late Bishop Strachan's address to 
the Synod of Toronto in 1858. It will be found in Bishop 
Bethune's life of Bishop Strachan, page 275. 

" Soon after the adjournment of the synod last year, 
" it became my duty to call together the clergy and 
" delegates of the new diocese of Huron, for the purpose 
" of electing their bishop. Such an assembly, and for 
" such a purpose, will mark a new era in our ecclesias- 
" tical history. It indeed presented a scene of deep 
" interest, and one wiiich stands without a parallel since 
" the first ages of the church. For, although in the 
" primitive times to elect the bishop was the rule, cor- 
" ruption had crept in, and had grown so general and 
" inveterate, that the manner of choice became not only 
" obsolete, but almost forgotten. Its resuscitation, there- 
" fore, excited wonder and astonishment, and offended 
" many as if it had been a new and unauthorised thing. 
" To behold an aged bishop, in this remote corner of the 
" world, gathering around him his elders, his clergy, and 
" his lay brethren, for the purpose of choosing a man 
" well qualified to fill the high and holy office of bishop, 
" according to apostolic usage, by the willing testimony 
" of the clergy and suffrages of the people, was surely a 
" spectacle which could not fail, in its noble simplicity 
" and beauty, to make abiding impressions which exterior 
■" pomp and magnificence could never equal. 

" The proceedings were conducted with becoming 
" solemnity ; and, though of the most exciting character, 
" the choice was made in a manner worthy of the occa- 
" sion, and honourable to all concerned. No sooner was 
" the name of the successful candidate announced by the 
" presiding bishop than all rival feeling vanished away, 
" and a unanimous vote confirmed the choice of the 
" clergy and lay delegates. It was refreshing to witness 
" the triumph of Christian unity and love, which threw r 
" to the winds all the arguments against the free and 
" honest choice of bishops, which the narrow selfishness 
" of many centuries had mustered up." 



51 

"Who could know better than Bishop Strachan, the feel- 
ing of the whole church upon this matter ? The people 
would rather have remained in the hands of the Crown 
had they supposed the free election of bishops would 
have been interfered with. The primitive character of 
these elections — their conformity to the customs of the 
early church — were well-worn themes of congratulation 
among laymen and clergy as well as bishops, but now it 
turns out that everybody was Wrong, because of the 
fourth Canon of the Council of Nicsea made to prevent 
Meletius from going bishop-making, in his wilfulness, 
throughout the dioceses of the Patriarchate of Alexan- 
dria, 

If, however, the custom of antiquity had been differ- 
ent from what it really was — if the balance of evidence 
had been contrary to the practice of the Canadian Church 
instead of in harmony with it, the law of this country has 
placed the election of bishops in the Diocesan Synods by 
the very statute which is the foundation stone of our 
whole Synod system. This statute was procured by the 
founders of that system and has passed into the law of 
the land, not to be altered by the canons of a derivative 
legislative body. The Provincial Synod can no more 
touch the. appointment of officers in contravention of the 
statute than it can legislate upon the election of Diocesan 
lay Delegates. These statutes are a standing evi- 
dence of the original consensus of the members of the 
Church of England in this country, and it is innovation 
and not conservatism which takes a single canon of the 
Council of Nicaea, and with it seeks to modify the funda- 
mental statute upon which all our legislation rests. Not 
only that, but the Canon is taken in a sense con- 
trary to the whole course of history. The interpretation 
given by Dean Stanley is the one universally received at 
all times by the Church in England. "When was it ever 
.heard that an election made either by King or Chapter, 



52 

was overruled by the bishops of the province ? As we 
have stated before, the validity of all acts done in the 
Anglican Church since the Reformation rests upon the 
canonicity of Archbishop Parker's consecration. If his 
appointment is invalid the clergy and bishops of the 
Church of England are laymen. Now Parker was 
ordained in spite of the refusal^ of all the bishops of Eng- 
land to take part in the ceremony. He was ordained by 
four bishops who had been exiled by Queen Mary, one of 
whom was a suffragan, without jurisdiction, and the other 
three were bishops then without sees, two of who'm were 
afterwards confirmed by the archbishop. They were all 
bishops, duly consecrated as to orders, and the consecra- 
tion of Parker was perfectly valid, even by the canon law 
of Eome at that time, but under the present interpretation 
of the fourth canon of Nicsea it was irregular. If this in- 
terpretation is to be held it will be difficult to meet the 
objections of Roman Catholics who may take us upon our 
own ground. In this manner Palmer was driven by Car- 
dinal "Wiseman to fall back on the Apostolic Canons 
which decree that ordination by two bishops is sufficient. 
These considerations are put forward not to impugn the 
validity of Archbishop Parker's consecration, but to show 
that trie change proposed in Canada is a novelty which 
tends to weaken the whole basis of the reasoning by 
which only Anglican orders can be defended. 

In every synod report, diocesan or provincial, will be 
found the statutes we refer to. The second Act refers to 
Diocesan lay Delegates, and has no bearing on the point 
at issue. The first Act has two clauses only. The first 
clause refers to diocesan synods, and the second to the 
Provincial Synod. The powers granted are defined 
clearly, and each body derives them separately from the 
same source. It is a parallel case to the British North 



Palmer — Episcopacy Vindicated. 

JBp. Short — History of the Church of England, p. 195. 



53 

America Act, under which the powers granted to the 
smaller bodies cannot be invaded by the Dominion Par- 
liament. Now, among the powers granted to the diocesan 
synods in the first clause of the Act, is that of making 
regulations "for the appointment, &c, of any person 
" bearing office therein of whatever order or degree, any 
11 rights of the Crown to the contrary notwithstanding." 
This clause^ covers, and was intended to cover, the elec- 
tion of bishops, and the nominating rights of the Crown 
were thus transferred to the diocesan synods alone. The 
second clause, referring to the Provincial Synod, is very 
vaguely expressed, simply empowering the making of 
" general arrangements for good government," whereas 
the powers enumerated in the first clause are specific. 
Inasmuch as no stream can rise higher than its source, it 
is beyond the power of the Provincial Synod to re-arrange 
the distribution of rights laid down in this Act unless 
with the separate consent of each diocese concerned. 

Concerning this matter the Diocese of Montreal has 
spoken. By a unanimous vote it adopted a report stating 
" that it would be inexpedient to make any change in the 
11 present mode of electing a bishop." If the Provincial 
Synod then choose to make any regulation touching the 
appointment of diocesan bishops, it will be done with 
the full knowledge that whenever their regulation is 
attempted to be put in force a conflict will arise in which 
the diocese whose rights are invaded must be victorious. 



* In support of this, see a letter dated November 27, 1866, from Mr. 
Chancellor Bethune to the Metropolitan, Bishop Fulford, then in England : — 
" So far as the Crown is concerned, it may fairly be doubted whether the Crown 
" has not really abrogated its prerogative by consenting to a law which vests 
11 the appointment of bishops solely with the diocesan synods of the ProvincsP 

The learned Chancellor is arguing against a proposition much more 
Nicene than the present viz : that the bishops should take their confirmation 
from the Archbishop of Canterbury.